Miami To Get Guidance On Land Acquisition From Supreme Court

By Suzy Valentine The US Supreme Court in its next session is expected to clarify whether the City of Miami may appropriate land next to the Orange Bowl earmarked for construction of a baseball stadium by eminent domain.

The Fifth Amendment of the US Constitution allows municipal governments to appropriate private land for public use without an owner’s consent if it pays "just compensation."

The scope of the term "public use" has been expanded to incorporate economic development and will be further redefined when the high court examines a Connecticut case next summer.

The owners of the Florida Marlins have an agreement with Miami-Dade County and city officials to build a baseball stadium near the Orange Bowl, requiring the city to acquire rental housing in the neighborhood.

One local attorney said the court must tread a fine line between what’s good for a city and what’s good for a few individual investors when it reviews the facts in Kelo vs. New London. Washington has overruled a similar decision that entitled General Motors to a patch of land in Poletown, MI.

"It’s all going to turn on what amounts to public use," said Bercow & Radell partner Ben Fernandez. "The court must decide whether a taking, in that case, only benefits a few private owners or whether there is a trickle-down effect in terms of jobs and regeneration.

"The question with the Orange Bowl is: Is this area sufficiently blighted?" said Mr. Fernandez, a Miami land-use attorney. "Everybody here in the city thinks it is."

Another real estate lawyer, in South Beach, was more circumspect. "It’s almost a reverse socialism," said David Cooper of Cooper Law. "It’s a return of land from the poor to the wealthy.

"My concern is what happens to the people there and how government will appropriate these properties. As the land gentrifies, $100,000 worth of so-called just compensation won’t account for the change in value to the land as it is transformed from residential to commercial use," Mr. Cooper said. "And if condos are built, which is highly likely, then they’ll turn over $300,000 to $400,000 each."

Mr. Cooper said, though, that he could see benefits in a regeneration.

"It’s great for development and developers," he said from his Michigan Avenue office. "The city or county can take property, and you get low-income areas that aren’t making money becoming productive.

"It brings business into the area, and it generates interest in living near the project through condo development as well as introducing retail-related aspects like restaurants and bars," Mr. Cooper said. "It’s also good for government in raising tax revenue. I’m sure that’s a large part of it."

When the idea of housing the Marlins in a stadium next to the Orange Bowl was touted in the 1990s, the cost of construction was estimated at $250 million. Costs now are expected to surpass $400 million. A funding package, the bulk of which would come from public coffers, is incomplete.

The Orange Bowl, which has fallen into disrepair, is to receive $50 million in government funds after Miami-Dade voters approved a bond issue Nov. 2 for construction of and improvements to parks and recreational facilities.